June 2020

Note: please join us today, Tuesday, June, 23, 2020 (12 noon Hawaii Time) for a (free!) webinar. We’ll analyze the latest on “Lockdowns, testing and tracking: Are they all really legal?”

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There have been quite a few lawsuits filed nationwide challenging the various shut-down and “essential”/”nonessential” distinctions being made. So many that we can’t keep track of all of them, only the complaints that allege takings. See here, here, here, here, here, here, here, here, here, here, here, here and here, for a sampling.

So far, two lawsuits have been filed challenging the Hawaii Governor’s corornavirus-related orders (neither alleges a taking, but we’re following along because … 808). See here and here for the complaints.

Here’s the latest:

1. In the first case filed (For Our Rights v. Ige), …

Continue Reading Mark Your Calendars: Hearings Set For Two Challenges To Hawaii Gov’s Lockdown Orders

A long opinion, but a short post. In Stanford Vina Ranch Irrigation Co. v. California, No. C085762 (June 18, 2020), the California Court of Appeal held that water rights are not really property rights.

That’s a bit of an overstatement, of course. But not a huge one.

In an inverse condemnation case, the court held that the owner of riparian rights did not have a protectable property interest in any amount of water, because riparian use, by definition, must always be reasonable. And the state gets to define what use is “reasonable.” Thus, the logic goes, because the State Water Resources Control Board determined by emergency regulation that any uses which might jeopardize the flow of water into a creek (to protect fish) were unreasonable, there’s no takings claim for an owner who claimed a vested right to the water. No property, no taking:

We have already explained the…

Continue Reading Cal App Backs Into The Question: Riparian Rights Are Limited To Reasonable Use, So No Property Right In What Agency Deems Unreasonable Use

A new, must-add-to-your-reading-list article from takings and expropriations law scholar Professor Shai Stern.

In “Pandemic Takings: Compensating for Public Health Emergency Regulation,” Professor Stern dives into a question a lot of us have been pondering lately, namely whether the pandemic-related shutdown orders might trigger the Just Compensation imperative in the Fifth Amendment’s Takings Clause.

Takings arguments have been raised in may of the legal challenges to coronavirus shut-down orders that have been filed nationwide (see here, here, here, here, here, here, here, here, here, here, here, here and here, for a sampling). But do these claims have any chance of succeeding? Read the article and find out. (Our thoughts on the takings aspects of the shutdowns orders: Evaluating Emergency Takings: Flattening The Economic Curve.) 

Here’s the Abstract:

The COVID-19 pandemic led all states…

Continue Reading New Must-Read Article: “Pandemic Takings: Compensating for Public Health Emergency Regulation” (Prof. Shai Stern)

Please join us tomorrow, Tuesday, June, 23, 2020 (12 noon Hawaii Time) for a (free!) webinar. We’ll analyze the latest on “Lockdowns, testing and tracking: Are they all really legal?”

We’ll be joining constitutional lawyer Jeff Portnoy and Dr. Keli’i Akina for the program, sponsored by the Grassroot Institute of Hawaii. Sign up now, space limited!

We’ll be discussing the legal questions that have arisen from the shut-down orders, including takings, state-law limitations, and the two federal court lawsuits that are pending. supplemental orders under the automatic termination provision (among other claims) (see here and here for the complaints).

We’ve written up our thoughts on these issues in two articles, “Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority,” 43 U. Haw. L. Rev. ___ (forthcoming 2020) (download from SSRN at the link), and “Evaluating Emergency Takings: …

Continue Reading Upcoming (Free) Program: “Lockdowns, testing and tracking: Are they all really legal?” Tuesday, June 23, 2020 (12 noon Hawaii Time)

The University of Hawaii Law Review has graciously agreed to publish an article we’ve been working on, “Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority,” 43 U. Haw. L. Rev. ___ (forthcoming 2020) (download from SSRN at the link).

The article takes a deeper dive into Hawaii’s emergency laws, the judicial history of the Hawaii court on public health emergencies (we unfortunately have a lot of such history), some modern Hawaii Supreme Court jurisprudence, and Hawaii’s love of Spam® (the lunch meat, not the junk email). It also takes a hard look at the most important limitation on government power in an emergency, the statutory requirement that any emergency proclamation automatically terminates no later than sixty days after it is issued.

(Tomorrow, we’ll be joining Honolulu lawyer Jeff Portnoy, and Dr. Keli‘i Akina for a free, open-to-the-public program sponsored by…

Continue Reading New Article: “Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority” (U. Haw. L. Rev. forthcoming 2020)

Here’s the recording of last week’s program we did for the King Kamehameha V Judiciary History Center, “Constitutional Law and States of Emergency: Lessons from Hawaii’s Judicial History for the COVID-19 Pandemic.”

Links to the cases and other materials we referred to in the presentation are posted here.

Tomorrow, we’ll be joining Honolulu lawyer Jeff Portnoy, and Dr. Keli‘i Akina for a free, open-to-the-public program sponsored by the Grassroot Institute of Hawaii, “Lockdowns, testing and tracking: Are they all really legal?“

Jeffrey Portnoy and Robert Thomas will talk about what we can expect as the state and counties slowly lift their seemingly endless stay-at-home orders, which have discriminated between “essential” and “nonessential” workers, mandated “social distancing” and mask-wearing, and imposed 14-day quarantines on arriving airport passengers, both tourists and residents returning home.

During the hourlong event, Portnoy and Thomas will consider whether businesses destroyed or…

Continue Reading Judiciary History Center Program Recording: “Constitutional Law Lessons from Hawaii’s Judicial History for the COVID-19 Pandemic”

It’s been a long week, and it’s Friday with a filing coming up. So we’re not going to spend a lot of time digesting the Federal Circuit’s opinion in Alford v. United States, No 19-1678 (June 19, 2020). Plus, it is a short one (11 pages) that makes one major point.

Short story: after an unusual amount of rain, to save a levee from a predicted 95% chance of breach, the Corps of Engineers decided to raise the normal levels of Eagle Lake, causing damage to the plaintiffs’ lakefront properties. Their land was flooded for three months. The CFC agreed this was a taking, and awarded $168,000 in just compensation.

The Federal Circuit reversed (opinion by Judge Dyk, are you that surprised?). The court held that on the whole, the property owners should be grateful that the Corps flooded their lands, because the “relative benefits” doctrine. If the government…

Continue Reading Federal Circuit: Be Grateful Your Property Was Flooded (It Could Have Been Worse)

KamV Jud History Center

Here are the links and other materials which we spoke about in this afternoon’s program for the King Kamehameha V Judiciary History Center, “Constitutional Law and States of Emergency: Lessons from Hawaii’s Judicial History for the COVID-19 Pandemic.”

“Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the states were not determined in the light of emergency and they are not altered by emergency. What power was thus granted and what limitations were thus imposed are questions which have always been, and always will be, the subject…

Continue Reading Links And Materials From Judiciary History Center Program: Constitutional Law and States of Emergency: Lessons from Hawaii’s Judicial History for the COVID-19 Pandemic

Supreme Court of the Kingdom of Hawai‘i

M. GIBSON, PRESIDENT BOARD OF HEALTH,

    v.

THE STEAMER MADRAS.

JANUARY TERM, 1884.

February 26, 1884.

APPEAL FROM DECISION OF JUDD, C. J., IN ADMIRALTY.

JUDD, C. J., MCCULLY and AUSTIN, JJ.

OPINION OF THE CHIEF JUSTICE.

The decision of the Chief Justice, appealed from, was as follows:

This is a libel in admiralty by the President of the Board of Health of the Hawaiian Kingdom against the steamer Madras, whereof W. H. Bradley is master, filed on the 12th of June. Attachment was made on the same day. On the filing of a bond, deemed sufficient by the libellant, the vessel was released from attachment.

The libel recites, in substance, that the steamship Madras arrived at the port of Honolulu on the 8th of April, 1883, upon a voyage from Hongkong, in China, with 745 Chinese passengers, of whom 600, more…

Continue Reading Gibson v. The Steamer Madras, 5 Haw. 109 (1884)

104481738_2170057539806372_2938554143515873721_nphoto: Patricia Salkin

Just published: the 2020 Zoning and Planning Law Handbook (Green Book). The first section of the Summary of Contents is about Takings, and includes as the lead piece Professor Gideon Kanner and Michael Berger’s tour-de-force article, “The Nasty, Brutish, and Short Life of Agins v. City of Tiburon.” It also includes my articles on Murr, “Restatement (SCOTUS) of Property: What Happened to Use in Murr v. Wisconsin?”

Check it out. The Green Book is a one-stop shop for the best articles on land use in a given year, and this edition includes chapters on housing, agriculture, cell tower placement, RLUIPA, and (of course) zoning.

Our thanks to Dean Patty Salkin who edited the volume for including us.

Summary of Contents, 2020 Zoning and Planing Law Handbook (Green Book)

Continue Reading Available Now: 2020 Zoning and Planning Law Handbook (Green Book)